Federal Prosecutors Fear a Referee in the Grand Jury Room

Mike Fox

Recently, I’ve begun to wonder how it is that grand juries—which have recently begun rejecting politically motivated prosecutions—have blessed prosecutions as ridiculous as that of former Olympian David Hearn.

Earlier this summer, a DC-based federal grand jury indicted Hearn on felony charges for allegedly vandalizing the Lincoln Memorial Reflecting Pool. US Attorney Jeanine Pirro was eventually forced to dismiss the indictment against Hearn—and others—because the damage was caused not by Hearn or other vandals but by a Trump-connected contractor’s botched and rushed installation. As the US Attorney’s Office in Washington, DC struggles to secure convictions, the notion that DC grand jurors drawn from that precise community have greenlighted these prosecutions seems far-fetched—unless grand jurors are being lied to, manipulated, or aren’t being presented with the full picture.

The Hearn case highlights a growing problem that thankfully has an easy solution. Today, grand jury proceedings are controlled exclusively by prosecutors and shrouded in secrecy. A federal grand jury is typically composed of 23 people and requires a simple majority vote of 12 to indict. There’s no judge or defense attorney present to ensure that prosecutors play by the rules. Rather, the system relies entirely on prosecutors to police themselves, something they’ve demonstrated a profound inability to do. Insulated from scrutiny, prosecutors have free rein to present one-sided narratives, withhold potentially exculpatory evidence, vouch for witnesses, dismiss grand jurors not sympathetic to the government’s narrative, and secure indictments with virtually zero oversight.

As we saw in the fallout from the “Broadview Six” case, in which veteran Assistant US Attorney Sheri Mecklenburg personally vouched for witnesses, excused grand jurors who disagreed with her version of the case, and spoke with grand jurors outside the grand jury room, it’s clear that prosecutors don’t always play by the rules. It took three attempts for Mecklenburg to finally secure an indictment against the anti-ICE activists whom federal prosecutors allege blocked an ICE vehicle during a September 2025 demonstration outside an ICE facility in Broadview, Illinois, in opposition to “Operation Midway Blitz.” 

But upon further review, US District Judge April Perry uncovered Mecklenburg’s misconduct. This led US Attorney for the Northern District of Illinois Andrew Boutros to dismiss the indictments against the six defendants with prejudice. As of July, more than a thousand cases remained under review. 

When I debate current or former prosecutors, without fail they insist that they’ve never put an innocent person behind bars. One might think that a profession so confident in its abilities would be just fine without the benefit of absolute prosecutorial immunity. But they nevertheless balk at the notion of facing civil liability. My Cato Institute colleague, Clark Neily, when encountering the same response from prosecutors, has suggested that if they’re so confident that they never do anything wrong, they should have no qualm about having to pay treble damages should the very thing they claim never happens ever occur.

Similarly, there’s a straightforward solution to curb grand jury misconduct that’s sure to trigger anxiety among federal prosecutors: interpose a neutral judge between federal prosecutors and grand jurors. Of course, if prosecutors play fair, they have nothing to worry about since this proposal would have no bearing on how they conduct themselves. 

While the constitutional authority to file criminal charges and convene grand juries resides plainly with the executive branch, the Fifth Amendment’s Grand Jury Clause was designed as a shield for the citizen, not an unchecked weapon for the state. Having a neutral judge preside over closed-door proceedings wouldn’t impede grand jury secrecy, nor would it make the hearings public or reveal grand juror identities. It merely places an impartial referee in the room and creates a transcript accessible to the defense under appropriate protective orders. Judges would play no real role beyond intervening if prosecutors go awry. When prosecutors play by the rules, the judge can simply twiddle her thumbs. 

Changes are already being implemented across the nation. District-level policy tweaks governing what happens after a grand jury proceeding are important, but don’t go far enough. Presently, judges remain free to review grand jury proceedings for irregularities. Similarly, given the pattern of misconduct, it’s incumbent upon defense attorneys to ask them to do just this. Another promising reform would be to limit prosecutors to a single bite at the apple. Accordingly, if they present a case to a grand jury and that grand jury declines to indict, they’re done, and the case is over. Currently, prosecutors can try as many times as they’d like. Lastly, mandating that all grand jury proceedings be audio recorded would help preserve the record. 

All these recommendations would be meaningful, but none are as impactful as putting a judge in the grand jury room. This proposal would require expanding judicial resources, but the cost of inaction is far higher. If federal prosecutors oppose having a neutral arbiter ensure they play by the rules, we should ask what it is they’re trying to hide. Transparency and accountability are basic tenets of just government—and they’re ones we should demand from those we task with upholding the rule of law.